CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
The Impact of Foreign Competition Decisions on Canadian Court Proceedings Decisions of foreign competition authorities are not binding on Canadian courts but they can be persua - sive. Canadian courts may consider foreign findings and settlements as part of the factual record, particu - larly in follow-on cartel class actions. Canadian courts nevertheless conduct their own independent assess - ment under the Competition Act. 2.4 Proof Burden and Standard of Proof The allocation of the burden of proof depends on the nature of the proceeding. In civil matters before the Competition Tribunal, including merger review and abuse of dominance cases, the Commissioner of Competition bears the burden of establishing the ele - ments of the claim on a balance of probabilities. The same civil standard applies to private actions before Canadian courts. By contrast, criminal offences under the Competition Act, such as cartel conduct and bid- rigging, must be proven by the prosecution beyond all reasonable doubt. Statutory Presumptions Section 92 (3) of the Competition Act creates a rebut - table presumption that a merger is likely to prevent or lessen competition substantially where specified concentration thresholds are met. Concentration is measured using the Herfindahl-Hirschman Index (HHI), calculated by summing the squares of market shares in the relevant market. The presumption applies where: • the HHI increases (or is likely to increase) by more than 100 points; and • either: (a) the post-merger HHI exceeds 1,800; or (b) the parties’ combined market share exceeds 30%. Where these thresholds are satisfied, the burden shifts to the merging parties to rebut the presumption with evidence demonstrating that the transaction is not likely to result in a substantial prevention or lessening of competition.
Ltd . v Competition Tribunal , the Supreme Court con - firmed the Tribunal’s authority to sanction non-com - pliance with its orders. 2.3 Impact of Competition Authorities In Canada, the National Competition Authorities are comprised of (i) the Competition Bureau and (ii) the Competition Tribunal. The Competition Bureau and Antitrust Proceedings The Competition Bureau is the independent federal agency responsible for administering and enforcing the Competition Act, as well as several consumer pro - tection statutes. It investigates anti-competitive con - duct, including cartels, abuse of dominance, mergers, deceptive marketing practices and bid-rigging, and may bring civil proceedings before the Competition Tribunal or refer criminal matters to the Attorney Gen - eral of Canada. While the Bureau plays a central enforcement role, it is not a court and its decisions, policies and enforcement guidelines are not binding on civil courts, although they often carry significant persuasive weight. The Bureau may also participate directly in proceedings before the Competition Tribunal and, in some cases, court proceedings. Binding Effect of Competition Tribunal Decisions The Competition Tribunal is a specialised adjudicative body that hears most civil competition matters. Its decisions are binding on the parties unless overturned on appeal by the Federal Court of Appeal. In Canada ( Director of Investigation and Research ) v Southam Inc ., the Supreme Court held that appel - late courts should show considerable deference to the Tribunal’s economic assessments, including mar - ket definition. However, the continued application of Southam ’ s standard of review has been questioned following the Supreme Court’s decision in Canada ( Minister of Citizenship and Immigration ) v Vavilov , which reformulated the framework for judicial review. Whether Southam remains fully applicable in appeals from the Competition Tribunal has not been settled.
46 A NTITRUST LI T IGATI O N 2026
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